Fondé en 1983 --Unis pour la diversité et l'égalité raciale


Montreal, October 23, 2014 --- David, a Black victim of racial profiling, won the first legal hurdle this week in his case against the Quebec human rights commission before the Quebec Superior Court, for having rejected his complaint based on its misinterpretation the law and the facts.

Last Monday, the Superior Court dismissed the Commission’s motion to have David’s case dismissed and allowed it to go forward. The court’s decision can have a significant impact on how the human rights commission treats racial profiling complaints and the delay in which citizens can sue municipal police officers for civil rights violations, particularly in the case of bodily injuries.

The case dates back to July 2012, when David, a then-27 year-old, professional of Haitian background, was the target of violent police intervention and arrest in the Pointe-aux-Trembles district of Montreal. Intercepted by two police officers when he was in his car with his girlfriend, at night and two blocks from where the gunfire took place, David was first suspected of being involved in a shooting but once the police learned that the real suspect was intercepted elsewhere David was suddenly suspected of alcohol consumption. The police was looking for a Black suspect in a black jeep, while David was in his black Altima Nissan.

During the brutal interception by the police, David was thrown to the ground, punched, hit with a baton and pepper spray, even when he was not resisting. He was then arrested and detained in a police prison cell before being released with two criminal charges against him, one for obstruction a police officer’s work and the other, for refusal to take the alcohol test. His driver’s permit was also suspended, creating major inconvenience for him since he needed to drive to work.

Several hours after his release in the early hours of morning, David went to a medical clinic for a check-up, suffering from pain on different parts of his body, problems with his vision and a diminution of his hearing capacity. A medical report was produced by the doctor in which she referred to “light contusions” and suggested ice in case of pain.

With CRARR’s help, David filed a complaint against the officer with the Police Ethics Commissioner. After investigating the case, the Commissioner cited the officer for five breaches of the Code of Ethics for Police Ethics, including one for race bias.

Another complaint for racial profiling was also filed with the Human Rights Commission. It is this complaint that was rejected by the Commission more than one year after its filing, on the basis that the complaint was filed one month after the 6-month delay and was therefore beyond the time limit allowed by s. 586 of the Cities and Towns Act. According to the Commission, David could not benefit from the three year deadline of the Civil Code for civil action, as he did not suffer from bodily injuries. It is important to mention that the Quebec Court of Appeal had previously ruled in another case that any infringement of an individual’s physical integrity constitutes physical damage as defined by law.

In David’s case, the evidence clearly points to bodily injuries which he sustained during the arrest. Not only the medical report mentioned “light contusions” on his body, but the police report filed by the arresting officer specifically described punches and the use of baton on his body. In this regard, David argues that it is not within the Commission’s authority to qualify or to trivialize his bodily injuries, but that it falls on the courts to do so.

Finally, the record indicates that CRARR filed the complaint in February 2013, which went through preliminary evaluation at the intake stage in April 2013 to determine its admissibility. In May 2013, the Commission requested a more legible copy of the medical report, which was submitted, without further feedback from the Commission. The file was sent to investigation and it was only in April 2014 that the Commission’s investigator asked questions about the medical report, bodily injuries and time limit.

In this regard, David believed that the Commission erred in a manifestly unreasonable manner when it closed his file in August 2014, and that it failed to heed case law on the deadline for complaints.

David filed for judicial review, asking the Superior Court to declare that the Commission made a serious error of law, to reverse the Commission’s decision and to send the file back to the Commission to treat his case in compliance with the law. He is also seeking $15,000 in damages against the Commission, for negligence in handling his case, misinterpretation of the law and wrongful conclusion on the deadline for civil action.

The Commission sought to have David’s judicial review dismissed since it was filed after the normal 30-day deadline for judicial review. Last Monday, the Superior Court threw out the Commission’s dismissal motion. Mr. Justice Pierre Nollet raised questions about the Commission’s qualification of “light contusions” as not being “bodily injuries” and ordered the Commission to pay him court-related costs. This paved the way for David’s judicial review to proceed.

According to Me Melissa Arango, David’s lawyer, “This is a victory for David. We believe that our position will prevail, and that it will benefit not only my client, but also all victims of police brutality and racial profiling in Quebec who want to sue for damages.”

“It is very disturbing that the Commissioners made a decision about my case without proper legal advice, and that the Commission went against what the Court of Appeal had ruled,” said David, whose father is a well-known person in the Montreal Haitian community.

“I am not supposed to borrow and spend several thousand dollars to ask the court to tell the Human Rights Commission how to protect my rights. Imagine what happens to victims of racial profiling who turn to the Commission for help without the support of a group like CRARR or without the money to access real justice,” he noted.

The Police Ethics Commissioner has, after investigation, cited the police officer involved before the Police Ethics Committee, for violations of the Code of Ethics for Police Officers, including race-based conduct.